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The NRC staff recently publicly released a major new paper embracing regulatory reform to advance risk-informed regulation for advanced reactors.  Included in this paper is a concept of a “10 CFR Part 53”—a potentially entirely new process for licensing advanced reactors.

SECY-18-0060, “Achieving Modern Risk-Informed Regulation,” proposes “several significant and specific revisions” to the NRC regulatory framework.  The staff introduced these proposals by first discussing the results from an outreach program, which found a “need for systematic and expanded use of risk and safety insights in decisionmaking.”  The review team also found recommendations for a more open and efficient decisionmaking process for licensing new technologies.  Of significance, the NRC staff explained in this paper that some of its proposals, reflecting feedback from its outreach, will require cultural change at the NRC—in fact, that “[a] shift in NRC culture will be key to the success of the transformation initiative.”

The paper then builds from this, to discuss ways to “transform” the NRC’s licensing process.  The first part of this discussion focuses on changes that can be made through guidance, in particular to adopt “approaches that use qualitative and quantitative safety and risk insights to scale the level of review needed to make a finding of reasonable assurance.”  As part of this initial reform, the NRC staff discusses use of “(1) expert panels to guide reviews of incoming submittals for new technologies and major licensing actions; (2) internal small groups of NRC staff and management to guide the licensing process (called ‘guiding coalitions’); and (3) ‘tiger teams’ consisting of small groups of NRC staff who are empowered to identify alternative solutions to resolve licensing challenges, without being unnecessarily constrained by current processes or past practice.”

However, then the NRC staff paper moves on to discuss much more significant regulatory reform—to essentially create a new licensing path for advanced reactors that focuses on “meeting high-level risk-informed, performance-based criteria.”  Enclosure 5 to the paper, which lays out “Additional Detail on Areas of Transformation,” delves into more detail, and also advocates for a “10 CFR Part 53” licensing process: “[A] new optional framework [that] would provide greater applicability for non-LWR applicants and minimize the need for exemptions.”  Although recognizing the challenges with a new rulemaking, the paper advocates for the approach and notes that “[t]he timing for a new rule is ideal right now, in that it will signal to the rising non-LWR community and other stakeholders that the NRC is committed to reviewing and licensing new reactor technology in a timely manner and in a way that relates directly to tomorrow’s technology.”

SECY-18-0060 represents the product of a great deal of work and research by the NRC staff, and promises significant, if not fundamental, reforms to the NRC’s licensing process at this critical juncture for the “New Nuclear” economy.  Expect to see significantly more analysis and attention to this effort as it moves forward.  For more information on the NRC’s regulatory reform initiative, please contact the authors.

A recent headline in the energy trade press would not likely have caught the attention of the advanced nuclear industry: “Trump’s DOE punishes Obama-era solar success story.” A casual reader might quickly dismiss the story as indicative of a Trump Administration bias against renewable energy. The details reported in the story, however, convey a far different message—one that is great significance to the many advanced nuclear technology companies that are responding to DOE’s funding opportunity announcement for advanced nuclear development.

The E&E News article reports that a company by the name of 1366 Technologies accepted millions of dollars in DOE funding to develop a process to reduce the cost of producing silicon wafers. In return, it made certain commitments routinely required of recipients of DOE technology funding: to engage in substantial U.S. manufacture of the technology, to disclose to DOE patents produced with DOE financial assistance, to give DOE a royalty-free license for government use, and to give DOE so-called “march-in rights” to license the technology to others if the funding recipient fails to use the technology itself.

According to the published story, DOE has sought to enforce the commitment 1366 Technologies made to build its solar wafer manufacturing plant incorporating the DOE-funded technology in the U.S., specifically in upstate New York. Delays in obtaining a wholly separate DOE loan guarantee are said to account for a decision by 1366 to instead build its first plant in Asia. E&E News reports that DOE has responded with a submission to the United States Trade Representative suggesting that the failure to comply with the U.S. manufacture commitment should be weighed in considering a request by 1366 for exemption from the 30 percent tariff that generally applies to foreign manufacturers of solar panels. DOE is also reportedly evaluating its options with respect to 1366’s failure to disclose patents it filed while it was accepting DOE financial assistance. Under DOE intellectual property (IP) rules, the failure to make a required disclosure could result in a loss of rights in those patents.

This is not fairly characterized as an instance of the Trump Administration attacking the solar industry. Rather, it represents a continuation of the practice that the Obama Administration and others before it pursued (albeit with varying degrees of ardor) of ensuring that the American taxpayer gets the benefit of its bargain for assisting in the advancement of energy technologies. That funding is designed to advance U.S. competitiveness in energy technology and energy manufacturing. In DOE’s view, allowing the IP that results from the taxpayer investment to be shipped abroad for commercialization can defeat the purpose of the taxpayers’ investment. DOE’s views are supported by statute (in particular, this is the intent behind the Bayh Dole Act, 35 U.S.C. §§ 200 – 212).

This is why the advanced nuclear technology industry should be paying close attention to the 1366 case. The FOA for advanced nuclear technology puts great emphasis on the desire to rebuild U.S. nuclear manufacturing capability. DOE has recently announced its first round of awards under the FOA. Additional applicants have submitted in the second round, and many others are preparing to submit one or more applications over the five years that DOE has said the FOA will remain open. The FOA represents a great opportunity to make important advances in nuclear technology prowess and to restore the U.S. nuclear supply chain to its past pre-eminence. That is what DOE expressly seeks to do. Therefore, it is important to understand and to put in place a program to assure compliance with the “strings” that are attached to the DOE money.

More than 10 pages of the lengthy FOA are devoted to the applicable IP rules. The eyes of an enthusiastic applicant might easily glaze over when they get to those 10 pages, but that would be a mistake. The rules reflect the implementation of statutory requirements, and they are unique to government-funded IP. They may be unfamiliar to those schooled in standard IP rules and practices associated with filing for patent rights. The ultimate commercial success of developing a great new technology may depend on understanding the obligations, managing the risks, engaging with DOE candidly when unanticipated challenges arise, and of course internalizing what we all already know: there really is no free money.

Applicants for DOE funding worry a lot about the government royalty-free license and the march-in rights (which the government has never exercised). However, the story about 1366 Technologies shows that those who accept federal funding to develop their technologies should have far greater concern about meeting the commitments they make to manufacture the technology in the U.S. and to disclose the patents they develop with government funds. In our experience, DOE is open to discussion and negotiation, within the constraints of its statutory obligations. However, DOE has demonstrated its willingness to employ at least some of the powerful enforcement tools it has at its disposal to enforce those obligations if it concludes the circumstances warrant such action.

In short, it is important to understand and take seriously the substantial U.S. manufacture and patent disclosure obligations that come with a financial assistance, because DOE does.

For more information, please contact Mary Anne Sullivan.

On Sunday, the popular TV show Madam Secretary gave a starring role to the climate and security benefits of nuclear power. The episode, titled “Thin Ice,” which is still available on the CBS website, proffered a full-throated defense of the climate benefits of nuclear power, turned a grassroots activist organization into a supporter of nuclear energy, and showcased how a nuclear powered ice breaker protected the Arctic from a foreign incursion. It capped with Secretary McCord convincing the show’s President to revise the national nuclear policy. As Michael Shellenberger opined following the episode (he also walks through the episode in detail), this marks a turning point for Hollywood, and “represents a popular culture breakthrough for the pro-nuclear movement.”  We encourage everyone to watch the episode!

From there, the week has only gotten better for nuclear innovation. The U.S. Nuclear Regulatory Commission (NRC) completed “the first and most intensive phase of review for” NuScale’s Design Certification Application for its small modular reactor. The NuScale design review has six phases to its schedule; but the first review sets the tenor, as it establishes the NRC staff’s preliminary safety evaluation of the reactor and encompasses a large portion of the requests for additional information. NuScale performed admirably in both areas. Along with this significant milestone—which derisks the company’s regulatory path forward—NuScale also received US$40 million from U.S. Department of Energy to continue advancing its innovative new, passively safe reactor design. And even the issue of nuclear waste storage might see progress, as the Nuclear Waste Policy Amendments Act of 2018 will get a vote on the floor of the House soon. The bill will move forward interim storage of spent nuclear fuel, and seek resolution on the licensing of a final national repository.

And apart from advancements on earth, NASA successfully tested KRUSTY, or “Kilopower Reactor Using Stirling Technology,” a nuclear reactor for potential moon and Mars bases. NASA personnel stated after the successful Nevada trial that “[n]o matter what environment we expose it to, the reactor performs very well.” NASA, along with Hollywood and Congress it seems, has taken a renewed interest in the role nuclear power can play in space exploration.

If you wish to learn more about any of these encouraging events, please contact the authors.

The U.S. Department of Energy (DOE) this week announced the award of approximately $60 million to 13 advanced reactor projects—the first under the funding opportunity announcement (FOA) “U.S. Industry Opportunities for Advanced Nuclear Technology Development.”  The 13 projects cover a diversity of steps in the commercialization process:

  • 4 concern modeling and development pathways;
  • 2 concern regulatory assistance and engaging in pre-licensing reviews;
  • 2 concern demonstration readiness; and
  • 5 other awardees received GAIN vouchers for research and development.

The R&D topics likewise span a broad spectrum, from fuel cycle facilities to reactor design.  More information on the awards can be found in the press release.

DOE notes that these are just the first announcements, and a “subsequent quarterly application review and selection processes will be conducted over the next five years.”  Moreover, “DOE intends to apply up to $40 million of additional FY 2018 funding to the next two quarterly award cycles for innovative proposals under this FOA.”  So keep on the lookout for more opportunities!

The awards follows fast from Secretary Perry’s announcement of a “Statement of Intent” to cooperate on fast-spectrum sodium-cooled advanced reactors.  As provided in the announcement: “Cooperation on the development of advanced fast neutron sodium-cooled reactors will explore areas of collaboration ranging from modeling, simulation, and validation to technology testing, access to supply chain, experimental facilities, and advanced materials.”  This type of work buttresses Secretary’s claim that DOE wants to refocus on nuclear to make it “cool again.”  To learn more about DOE’s bilateral cooperation efforts, please see here.

For more on DOE funding opportunity announcements and how to apply, and on opportunities to take advantage of DOE bilateral cooperation agreements, please contact the authors.

NASA iTech and the U.S. Department of Energy’s Advanced Research Projects Agency-Energy (ARPA-E) are collaborating on a unique competition to identify transformational energy technologies that can address critical problems here on Earth that also hold great potential to solve critical technology challenges in future space exploration.  On that list: fission reactors.

NASA and ARPA-E are seeking to identify the nation’s top entrepreneurs and researchers to present their innovative technologies to address energy-specific challenges. A few examples of technology sub-themes that NASA believes have the potential to improve future space power systems include, but are not limited to:

  • Small Fission Power Systems
  • Fuel Cells and Regenerative Fuel Cells
  • High-energy Density Batteries and Supercapacitors
  • Solar Power Systems
  • Innovative Power Management and Distribution (including smart grids and wireless power transfer)
  • X-Factor Energy: innovations so compelling NASA and ARPA-E should know about them

Through April 29, 2018, inventors and entrepreneurs can submit a five-page white paper on their concept on the NASA iTech website.  A panel of subject matter experts from NASA and ARPA-E will review ideas submitted and select the top 10 finalists based on their relevance and potential impact to present at the upcoming 2018 iTech Energy Cycle.

The initial top 25 semi-finalists for this energy-focused cycle will be announced on May 10, 2018. The top 10 finalists will be announced on May 25, 2018. Those finalists will be invited to present their technologies and engage with NASA and ARPA-E subject matter experts, potential investors, and industry partners at the NASA iTech 2018 Energy Forum in New York City, June 11-14, 2018.

The ARPA-E at the U.S. Department of Energy provides R&D funding for transformational ideas to create America’s future energy technologies. ARPA-E focuses exclusively on early-stage technologies that could fundamentally change the way we generate, use, and store energy.

NASA iTech is an initiative sponsored by NASA’s Space Technology Mission Directorate and managed by the National Institute of Aerospace in Hampton, Virginia.  “NASA iTech has proven to be a successful public-private partnership model for stimulating the development of ground-breaking technologies, without the government being the early investor,” said Kira Blackwell, NASA iTech program executive in the Space Technology Mission Directorate at NASA Headquarters in Washington. “Previous entrants to NASA iTech have already raised more than $50 million in private investment funds.”  The NASA announcement is here.  For more information about the NASA iTech initiative, visit here.  For information about the Space Technology Mission Directorate, visit here.

Please contact one of the authors with any questions.

On April 4, the U.S. Nuclear Regulatory Commission (NRC) issued Regulatory Guide 1.232, Guidance for Developing Principal Design Criteria for Non-Light Water Reactors.  The regulatory guide’s generic set of Advanced Reactor Design Criteria cover most non-light-water technologies. The guide also includes technology-specific criteria for sodium-cooled fast reactors and high temperature gas-cooled reactors.

The regulatory guide describes how the general design criteria (GDC) set forth in Part 50 of the NRC’s regulations may be adapted for non-light-water reactor (non-LWR) designs. The guidance may be used by non-LWR reactor applicants to develop principal design criteria for any non-LWR designs, as required under the NRC nuclear power plant regulations. Notably, the guide can be used by advanced reactor designers to align their concepts with relevant NRC regulations for nuclear power plants, and will assist the NRC staff when reviewing future license applications.

We had previously written about the draft regulatory guide published by the NRC last year here.  As we noted then, this is an important document that deserves close attention by the advanced reactor community.  It provides one of the first detailed insights into how the NRC views advanced reactors, how far it is willing to step away from the GDC framework, and what it finds of importance from a safety perspective for advanced reactors.

For questions on the guidance, please contact one of the authors.

The White House released its long-awaited infrastructure plan outline last week.  Leaving aside the funding proposals, the plan sets forth a number of potential revisions to the environmental permitting process for new infrastructure projects that may deserve a closer look (these are found in Part III of the infrastructure plan outline).  Hogan Lovells has issued a detailed review of the broader infrastructure plan here, but we wanted to also briefly touch on a few points that could potentially impact the environmental review and permitting process for next-generation reactors by the U.S. Nuclear Regulatory Commission (NRC).

A number of these proposals as to environmental permitting have been floating around for a number of years, many on both sides of the aisle, and in particular concern the National Environmental Policy Act (NEPA).  Even if the President’s proposal itself does not move forward, a number of them may find themselves in any final infrastructure bill or future legislation:

    • Section 3(I)(A) – NEPA & Permitting Timelines: The proposal would establish a 21-month timeline for an agency’s NEPA review, and a 24-month permitting process from start to finish. The idea of setting deadlines for agency permitting actions has historically faced significant pushback over the years for a number of reasons—one being that this may encourage agencies to deny permits as a default when the deadline arrives.  However, there have been successful cases where statutory timelines have led to efficient agency processing of permits.  For example the Committee on Foreign Investment in the United States (CFIUS) reviews complex foreign investment transactions into the United States for national security risks in a one-to-three month timespan.  Done properly amidst other reforms to NEPA, a timeline for NEPA reviews can lead to significant permitting efficiencies.
    • Section 3(I)(B)(2) – Tailoring Discussion of Alternatives: One interesting proposal is tailoring the “Alternatives” discussion of a NEPA analysis.  The “Alternatives” analysis is often termed the “heart” of NEPA, and “rigorously explores and objectively evaluates all reasonable alternatives including the proposed action.”  It also drives a lot of the length of NEPA reviews, and is in need of reform.  One issue is that agencies end up spending significant time and capital evaluating alternatives to a project that are not practically up for consideration or commercially feasible.  The infrastructure plan proposes to exclude from NEPA “Alternatives” analyses those options “outside [the permitting agency’s] authority or outside the capability of the applicant.”  A large part of nuclear plant environmental reviews concern alternatives that are simply not going to be pursued.  Done right, a review of the scope of “Alternatives” analyses could yield significant benefits.
    • Section 3(III)(A) – Performance-Based Pilot Projects: This program would select 10 projects to be evaluated along “environmental performance measures” in lieu of the typical NEPA process.  The project applicant would commit to meet environmental parameters set by the lead federal reviewing agency (in this case the NRC) with public and interagency input.  The program would “focus on good environmental outcomes rather than a lengthy environmental review process.”  Candidates for the pilot program would be chosen “based on project size, national or regional significance, and opportunities for environmental enhancements.”

New nuclear reactor projects would be well-situated to be selected for such pilot programs.  Moreover, the NRC has significant experience in pursuing performance-based regulation, as it has been attempting to implement a more performance-based regulatory framework for nuclear safety issues for some time.  It could be a strong pilot lead agency to implement this concept for environmental reviews.

    • Section 3(IV) – Judicial Review: The infrastructure plan proposes significant changes to the framework for reviewing NEPA determinations.  Among them is a proposal to limit injunctions to “exceptional circumstances.”  The courts have already cut back on injunctions in NEPA cases since a seminal Supreme Court decision in Winter v NRDC (which also eliminated the notion that an injunction is automatic after a NEPA violation).  However, the threat of a NEPA injunctions drives agencies to ‘throw in the kitchen sink’ in their NEPA reviews to prevent such a deleterious outcome, greatly driving up review time and cost.  Reducing the threat of injunctions when agencies conduct reasonable reviews will certainly be controversial, but if done right could allow agencies to focus on the key environmental issues and only supplement their review when needed.

Another proposed change to the NEPA judicial review process would be to provide more certainty that data collected the first time around remains valid over time.  Agencies would be instructed to develop guidance regarding when new, more current data is required for a NEPA review as time passes, and courts would defer to this guidance.  This provision may face legal challenges, but targets another area where agencies are forced to do more than may be legally required in order to avoid a court injunction.  The process of data gathering, especially for nuclear projects, is time consuming and costly, and represents an area where greater certainty can markedly reduce permitting costs.

Apart from the environmental permitting modifications, a number of the funding programs could also prove beneficial for next-generation reactors if developed further.  This includes, for example, $20 billion set aside for a “Transformative Projects Program” for “bold, innovative, and transformative infrastructure projects” that face unique risks but otherwise could be commercially viable.  Such programs could bring much-needed financing to new reactor developers looking to bridge the funding “valley of death” before a first plant is constructed.

For more on the White House infrastructure plan, or on environmental permitting for nuclear reactors, please contact the authors.

The House Committee on Energy and Commerce, Subcommittee on Energy held a hearing February 6, 2018 to discuss the challenges facing America’s nuclear infrastructure, including advanced reactor development.  The hearing was called “DOE Modernization: Advancing the Economic and National Security Benefits of America’s Nuclear Infrastructure.” A video of the hearing can be watched here.

A background memorandum released in advance explained that the hearing would explore the following important topics:

  • National security implications associated with U.S. nuclear leadership and a domestic nuclear energy industry;
  • The outlook for domestic and international development of nuclear energy and application of nuclear technologies;
  • Challenges and opportunities regarding maintaining the components of a domestic nuclear fuel cycle; and
  • Options to develop and deploy advanced nuclear technologies

The hearing witnesses included (their statements are also provided below):

  • Mr. Art Atkins, Associate Deputy Administrator for Global Material Security, U.S. Department of Energy, National Nuclear Security Administration: Witness Statement
  • Mr. Victor McCree, Executive Director of Operations, U.S. Nuclear Regulatory Commission: Witness Statement
  • Mr. Ed McGinnis, Principal Deputy Assistant Secretary, U.S. Department of Energy, Office of Nuclear Energy: Witness Statement
  • Mr. James Owendoff, Principal Deputy Assistant Secretary, U.S. Department of Energy, Office of Environmental Management: Witness Statement
  • Dr. Ashley Finan, Policy Director, Nuclear Innovation Alliance: Witness Statement
  • Ms. Maria Korsnick, President and CEO, Nuclear Energy Institute: Witness Statement
  • The Honorable Bill Ostendorff, Former NRC Commissioner and Distinguished Visiting Professor of National Security, U.S. Naval Academy: Witness Statement
  • Dr. Mark Peters, Director, Idaho National Laboratory: Witness Statement
  • Mr. David Trimble, Director, Government Accountability Office, Natural Resources and Environment: Witness Statement

Summary of Key Issues for Advanced Reactor Community

During his opening remarks, Full Committee Chairman Greg Walden (R-OR) noted that “[a]t root today, is a question of our nation’s capabilities not only to propel nuclear innovation generally, but to ensure an infrastructure that is critical to our economic and our national security.” He promised to align U.S. policy with a changing world: “we must recognize the world looks different than it did at the birth of the nuclear age. Consequently, we must take steps to update the relevant policies. These policies must be forward looking to enable innovation and the development and deployment of new advanced nuclear technologies.”

Once witness questioning began, the Subcommittee quickly honed in on issues facing the advanced reactor community and expressed bipartisan support for U.S. government help to develop and deploy these innovative new designs. Among the issues discussed were the following:

  • SMR commercialization and deployment schedule

The first question asked at the hearing, by Subcommittee Chairman Fred Upton (R-MI), was on small modular reactor (SMR) commercialization and when the U.S. was going to see SMR designs being approved and deployed in the commercial sector. In response, Ed McGinnis, Principal Deputy Assistant Secretary, U.S. Department of Energy, Office of Nuclear Energy explained: “We are at a tipping point,” with the U.S. leading in design development but challenged in deployment of the technologies. He went on to note that NuScale project that can be “game changing” if successfully deployed.

Last year, reactor designer NuScale submitted to the U.S. Nuclear Regulatory Commission the first SMR reactor design certification application  in the United States. The NRC recently approved–in a first of a kind decision–that NuScale would not need a safety-related electrical power system. This means that the NRC believes the reactor can remain in a safe condition in the event it loses electricity. Currently, all nuclear power plants in the U.S. have safety-related electrical power systems. And the fact that NuScale does not need one is a testament to the inherent different nature of SMRs—and the first time the NRC has recognized as such during its review of an application.

On that front, Victor McCree, the NRC’s Executive Director of Operations, explained during the hearing that the NRC’s decision about NuScale reflects a “philosophical” change that will lead to more efficient and effective reviews. Mr. McCree continued on to explain that an NRC approval of the NuScale design would open the market in a way that large reactors cannot, including by being more affordable and improving grid reliability. Mr. McGinnis further explained that with a number of large-scale reactors facing shutdown, getting SMRs into the pipeline is an imperative, and among other things, DOE was working on integrating SMRs with wind turbines and solar plants. With SMRs versatility and fast ramp up ability, Mr. McGinnis explained, SMRs could be paired with renewables to firm up their intermittent power and delivery of emissions free power.

  • Concern with amount of DOE funding to support SMR commercialization and deployment

Several members expressed concern that—with less than US$30 million invested in advanced reactors—whether DOE is really pushing for commercialization of SMRs. In response, Mr. McGinnis noted that a lot of work was being performed at the national labs and DOE continues to work on deployment matters.

  • High-assay LEU and Test Reactors

Mr. McGinnis from DOE also explained that DOE was working towards development of a fast neutron reactor and growing a capacity for high-assay LEU. Mr. McGinnis acknowledged that next-generation nuclear innovators need a test reactor, which itself would require high-assay LEU. He added that NNSA is taking seriously the challenge of developing a high-assay LEU capacity for testing and eventual industry use.

  • Deployment of US SMRs overseas

A number of members asked about deployment of US SMRs abroad. In response, Mr. McGinnis remarked that a number of countries are interested in U.S. SMR designs and watching their progress. He remarked that the U.S. is the world expert in designing SMRs, and that if the U.S. was able to prove the technology domestically it would open up the international market. The hearing participants also discussed ways to speed up the U.S. nuclear export approval process. On that last point, Congressman Bill Johnson (R-OH) noted that he intended to introduce legislation soon to improve the export control authorization process. At the end of 2017, Chairman Upton and Congressman Johnson sent a letter to Energy Secretary Rick Perry saying that the slow pace of DOE authorizations for commercial nuclear energy exports is having harmful consequences for U.S. competitiveness and national security. “While DOE is in the process of implementing some targeted reforms, more work remains to accelerate agency decision-making so that our domestic nuclear technology leaders have timely answers necessary to compete effectively with other nations’ nuclear programs,” the letter said.

  • NRC fee reform

When asked about if the NRC is undergoing reviews of its fee structure and looking for ways to improve methodology especially when non-LWR reactors look for licensing, Mr. McCree confirmed that the NRC is looking at this issue.

With a flurry of attention on advanced reactors lately, the hearing brings welcome attention the advanced reactor community needs. Please contact the authors with any questions.

The Department of Energy (DOE) and Nuclear Energy Institute (NEI) have issued a trio of reports touching on important issues for small modular and advanced reactors:

The debut of these three reports so closely apart highlights the variety of issues new reactor developers have to work through simultaneously, from licensing to fuel supply to market dynamics.

The first report recognizes a common industry complaint—that although the legal standard for issuing new reactor licenses has not changed, in reality “the [Nuclear Regulatory Commission] now requires more effort from applicants” to meet that same standard—even when new reactor designs are inherently safer.  The report recommends that the NRC:

  • Refrain from asking for design details that do not have a nexus to safety (shortening review times);
  • Modernize design requirements to “be more systematic, predictable and repeatable”;
  • Establish predictable staged licensing pathways; and
  • Reign in unnecessary detail in setting a plant licensing basis to allow for more flexibility to make changes during construction.

The second report tackles a sleeping giant, the lack of a pathway to high-assay low-enriched uranium (high-assay LEU) (that is, uranium enriched between 5% to 20% with fissile elements).  While there is no prohibition to commercial access to high-assay LEU, there is also currently no domestic source for this fuel type.  Current fuel cycle facilities are capped legally (and sometimes physically) to work with ~5% enriched LEU.  This is a bottleneck to realizing the promise of advanced reactors, as developing the infrastructure for this industry will require “a minimum of seven to nine years.”  The report recommends that DOE and NRC collaboratively:

  • Support development of new shipping packages capable of holding high-assay LEU;
  • Develop “criticality benchmark data needed” to enable the private sector to license high-assay LEU “facilities and transport packages”;
  • Directly support the design of high-assay LEU facilities and fuel types; and
  • Finalize guidance documents on Material Control and Accountability and physical security for “Category II” facilities that contain high-assay LEU.

The third report follows hot on the heels of the Federal Energy Regulatory Commission’s decision to terminate a rulemaking proposed by DOE Secretary Perry that would establish a resiliency pricing scheme for baseload generation sources, including nuclear.  The DOE-commissioned report provides additional evidence for the resiliency benefits of nuclear power, but is more focused on the benefits of small modular reactors (SMRs) to support federal and military facilities; in particular, forward operating bases that often rely on uncertain civilian grids and/or trucked in fuel.  The report notes that SMRs are naturally hardened due to their underground construction and passive safety systems, are designed to provide scalable power that is reliable and grid-independent, and can provide years’ worth of fuel security—making them ideal for many national security contexts.

Despite its national security theme, the DOE-commissioned report suggests a novel solution to support SMRs that is based on the civilian sector—by engaging DOE support as a customer for the Tennessee Valley Authority small modular reactor project at Clinch River.  According to the report, DOE’s Oak Ridge National Laboratory and related facilities could rely on SMRs’ unique, resilient power for their mission-critical activities, use the SMRs for nuclear research, and at the same time help bring first-generation SMR technologies to market.  The report details a hypothetical transaction structure to support DOE involvement in the Clinch River project, and closes with other policy initiatives to complement this effort.

For more about the benefits and key issues facing next-generation nuclear reactors, please contact the authors.

Nuclear power has had a busy year in 2017.  One of the most important trends for preserving the existing fleet of operating nuclear power plants has been the financial commitment  by US states to support nuclear power operating in their states and preserve their largest source of carbon-free power—and the thousands of jobs that go with it. This represents a significant reversal in state policy towards nuclear power, which traditionally has been left out of state programs promoting low or carbon free power—despite the fact that 60 percent of the carbon free power in the U.S. is generated by nuclear power. And the new state involvement has the potential to be a game-changer for next-generation reactors.

To highlight some of the key state activities from this year:

  • New York’s Clean Energy Standard and Illinois’s SB 2814, with their Zero-Emissions Credit (ZEC) programs, came into effect this year.  These programs represent among the first significant state efforts to  compensate nuclear power for its environmental benefits, and has helped keep a large number of nuclear power plants operational. Ohio has also introduced legislation to implement similar ZEC-type programs.
  • Federal district courts separately upheld both New York’s and Illinois’s ZEC programs against federal pre-emption and Constitutional challenges. Both decisions have been appealed, but nonetheless allow the state programs to continue in the interim.
  • Connecticut passed legislation that would allow nuclear power to compete directly against other zero-carbon resources in certain circumstances.
  • New Jersey introduced and advanced legislation to support nuclear power through “nuclear diversity certificates,” which would support the nuclear reactors for their environmental and fuel diversity attributes.

The core of many of these programs is valuing the benefits of nuclear power using the “social cost of carbon” framework. The social cost of carbon represents a potential measure of the harms caused by carbon emissions (and therefore, the value of carbon avoided by zero emissions generation). It was developed by a federal government interagency working group and has found itself increasingly referenced as part of state climate initiatives.

Although these programs directly benefit the current light water reactor fleet, it also signifies a larger trend by states to put nuclear power on an equal footing to other forms of low or zero-carbon generation sources.  This trend cannot be ignored by the advanced reactor industry. Just as renewable energy grew through state-level efforts to support the industry through renewable energy credit programs and portfolio standards, next generation reactor developers may want to look to states along with the federal government as potential sponsors for first-of-a-kind reactor projects.

These activities also explore the myriad different legal routes states can pursue to support the environmental and societal benefits of nuclear power. The U.S. energy grid is an ecosystem with many state, regional, and federal actors all working together to provide electricity at low cost and in accordance with legitimate policy goals. Disputes are likely to arise (and have arisen) as to where the borders between state and federal involvement. But that does not change the fact that states have always had a role in the in the promotion and regulation of nuclear power. An opportunity now exists to redefined that relationship, and for a new generation of state leaders to reengage with a new generation of reactor developers, for the benefit of all involved.

For more on state legislative activities affecting nuclear power, please contact the authors.